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November 20, 2014

10 Common Mistakes to Avoid in Administering FMLA Leave

The Family and Medical Leave Act of 1993 ("FMLA") establishes minimum federal standards that Ohio School Districts must follow for medical, child care and family-related leave. Properly administering FMLA leave will save your School District money and reduce its liability.

Below are ten common mistakes school districts should avoid in administering FMLA leave:

1. Failing to run FMLA leave concurrent with workers' compensation leave. An employee who is injured or suffers an occupational disease while in the course and scope of employment may be granted temporary total disability or other forms of workers compensation leave. A workers' compensation injury or occupational disease that causes an employee to miss significant periods of work is likely a "serious health condition" under the FMLA. In such event, School Districts should run FMLA leave and workers compensation leave concurrently.

2. Granting FMLA leave to ineligible employees before determining whether or not there is a serious health condition. The service requirements to be eligible for FMLA require the employee to be employed for at least 12 months, and to have worked for at least 1,250 hours during the 12-month period immediately preceding the commencement of leave. Full-time teachers are eligible for FMLA leave even if they do not work 1,250 hours in a year. If an employee fails to meet these service requirements, he/she is not eligible for FMLA leave, even if there is a serious health condition.

3. Failing to notify employees of their rights. The regulations to the FMLA require employers to provide notice as follows:

General Notice: Notice has to be given at time of hire in a handbook or a copy of the general notice itself if your School District does not have a handbook.  

  • Eligibility Notice: Notice whether the employee meets the statutory eligibility criteria must be provided within 5 business days after the employee requests FMLA leave or the employer acquires knowledge that an employee's leave may be for an FMLA-qualifying reason.
    • If the employee is not eligible for leave, the notice must state at least one reason why the employee is not eligible.  
    • During the leave year, must provide another eligibility notice only if the employee's status has changed.
       
  • Rights and Responsibilities Notice: Details the specific expectations and obligations of the employee and any consequences of the employee's failure to meet these obligations. Must be provided each time the eligibility notice is provided to an employee 
     
  • Designation Notice: The employer must notify the employee if the leave is not designated as FMLA leave due to insufficient information or a non-qualifying reason. The notice must also include a statement of the employee's essential job functions if the employer will require that those functions be addressed in a fitness-for-duty certification.

4. Failing to recognize an employee may be entitled to FMLA leave when an employee does not specifically request it, yet provides information of a serious condition. Many School Districts, through Board policy or collective bargaining agreement, require employees utilizing extended sick leave or unpaid medical leave, to present proof of illness, injury, disability or other heath condition through a physician statement. Proof of medical conditions qualifying an employee for extended sick leave or medical leave will oftentimes also qualify as a serious health condition under the FMLA. In such instances, FMLA leave should run concurrent with sick leave and/or unpaid medical leave.

5. Failing to train administrators, supervisors and mangers on FMLA requirements. The FMLA, either through legislative amendment or judicial decision, is subject to frequent change. Training on administering FMLA leave should be a recurrent topic of training for all administrative team members who handle human resources and personnel decisions.

6. Failing to provide a job description with the Designation Notice if a fitness for duty certification is required to address the employee's ability to perform essential job junctions. A job description is oftentimes the best resource for a physician to review to certify whether an employee is fit for duty. Also, this document will likely be utilized in certifying that an employee is fit to return to work.

7. Failing to explore whether intermittent or reduced-schedule leave can be taken in such a manner as to minimize disruption to School District operations. If an employee has been approved for intermittent or reduced-schedule FMLA leave, the FMLA requires the employee to make a "reasonable effort" to schedule leave so as to not unduly disrupt the employer's operations. The School District may meet with the employee to discuss the best way to schedule intermittent or reduced-schedule FMLA leave to both accommodate the employee's serious health condition and to minimize the disruption to School District operations. However, if a health care provider determines the medical necessity for a particular treatment time, the medical determination prevails.

8. Failing to insure medical certification is complete and sufficient prior to approving FMLA leave. If an employer determines a certification is incomplete or insufficient, the employer must state, in writing, what additional information is necessary and allow the employee seven calendar days to cure the deficiency. If the employee refuses to cooperate, the employer may deny the leave.

9. Failing to authenticate or clarify FMLA certification with health care providers. The employer has the right under the FMLA to provide the health care provider with a copy of the certification, and may request verification that the information contained therein was completed and/or authorized by the provider who signed the document. Such contact does not require employee consent and does not violate HIPPA.

Best practice may be for a School District to obtain a signed medical release to contact the employee's health care provider at the time he/she files for FMLA leave. This would allow the School District to contact the employee's health care provider in the event a response on the medical certification requires clarification, without potentially running afoul of HIPPA.

10. Failing to enforce deadlines to submit certifications. When employees take medical leave under the FMLA, School Districts should require certification that confirms the medical condition. Employees have 15 days to submit the certification, unless it is impracticable to do so despite the employee's diligent, good-faith efforts. If an employee fails to submit the certification, FMLA leave may be denied. However, if the certification is incomplete, the School District must notify the employee of the deficiency and allow 7 days to cure, as set forth in item 8 above.
 

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